Cite as: 526 U. S. 172 (1999)
Thomas, J., dissenting
the treaty in question, the Indians reserved a right to fish, hunt, or gather on ceded lands. But it is doubtful that the so-called "conservation necessity" standard applies in cases, such as this one, where Indians reserved no more than a privilege to hunt, fish, and gather.
The conservation necessity standard appears to have its origin in Tulee v. Washington, 315 U. S. 681 (1942). In the 1859 Treaty with the Yakima Indians, the Yakima reserved " 'the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.' " Id., at 683 (quoting 12 Stat. 953). The Court held that Washington State had the "power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish," but that the Treaty foreclosed "the state from charging the Indians a fee of the kind in question." 315 U. S., at 684 (emphasis added). Its conclusion was driven by the language of the Treaty as well as the report of the treaty negotiations and what it revealed to be the Yakimas' understanding of the Treaty—to preserve their right "to hunt and fish in accordance with the immemorial customs of their tribes." Ibid. (emphasis added).1 Subsequent decisions evaluating state regulation by the conservation necessity standard similarly focused upon the language of the Treaty or agreement at issue and the Indians' understanding of the Treaty as revealed by the historical evidence. See Washington v. Washington State Commercial Passenger Fishing Assn., 443 U. S. 658, 665-669, 674- 685 (1979) (recognizing that the Court had construed the same Treaty language several times before, and emphasizing
1 A prior case interpreting the same 1859 Treaty held that the language fixed in the land an easement for the Yakima so that they could cross private property to fish in the Columbia River. United States v. Winans, 198 U. S. 371, 381-382 (1905). But the Court also wrote that the Treaty did not "restrain the State unreasonably, if at all, in the regulation of the right." Id., at 384 (emphasis added).
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